“Federal Contractors Shouldn’t Lose First Amendment Rights”

Ilya Shapiro and Trevor Burrus of the Cato Institute write about the lawsuit challenging the ban on federal contractors from making political contributions:

From the Boston Tea Party of 1773 to today’s Tea Party movement, from suffragettes to Occupiers, freedom of political association has always been this country’s hallmark. Importantly, this First Amendment freedom extends to campaign contributions. As the Supreme Court affirmed in the 1976 case Buckley v. Valeo,“the right of association is a basic constitutional freedom that is closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society.”

The Buckley ruling has since survived many assaults—including, most notably, Citizens United v. FEC—though Citizens United exposed certain instabilities in Buckley’s framework. In any event, challenges continue to arise at the intersection of campaign finance law, political association rights, and the freedom of speech.

An important one comes from three individuals who have business contracts with the federal government. Under the Federal Election Campaign Act’s section 441c(a), “any person who is negotiating for, or performing under, a contract with the federal government is banned from making a contribution to a political party, committee, or candidate for federal officer.” Accordingly, the three plaintiffs are prohibited from making their intended campaign contributions and thus from an important form of political participation. This rule applies even to someone like name plaintiff Professor Wendy E. Wagner, who derives only a fraction of her income from the federal contract.

Unlike contribution limits, which place a ceiling on the amount of money any individual is allowed to give to a federal candidate, the contractor ban prohibits a wide swath of citizens from making any political contribution. As a result, individuals who may have even the slightest contract with the government—contracts often awarded by independent administrative agencies that have no input or review by members of Congress —are banned from making even a penny of campaign contributions. For over forty years, the U.S. Supreme Court has found that the act of contributing to political campaigns is protected by the First Amendment right of free association, a right that rests “at the foundation of a free society.”

The Center for Competitive Politics (CCP) and the Cato Institute filed a joint friend-of-the-court brief urging that strict scrutiny be applied to a law. The CCP-Cato brief contends that even if strict scrutiny is not applied, the D.C. Circuit should still find the ban unconstitutional. As written, the ban sweeps in individual contributors who pose no risk of corrupting public officials, but still prohibits them from associating with the candidates of their choice.